WORCESTER – J.C. Penney and the family of a boy raped by an employee in the dressing room of its Sturbridge store in 2009 have agreed to a settlement in federal court.
Records filed this week in U.S. District Court show the two sides are ironing out the disbursement of a confidential settlement initially agreed to in August.
The amount of the settlement and identifying information about the boy will be kept secret, both sides said in a recent motion, on account of the family’s desire for privacy and because J.C. Penney “would be subjected to unwanted attention and negative publicity.”
The company’s media relations department did not respond Friday afternoon to a query about whether any company policies have been changed in light of the rape, which the family alleged occurred in part due to shoddy security.
The lawsuit, which demanded $4.5 million, was filed following the 2009 rape of a 13-year-old boy from Oakham by an employee who had worked at the Sturbridge store for five weeks.
The employee, Francisco W. Barros-Gomes of Charlton, pleaded guilty to charges of child rape and indecent assault and battery on a child in Worcester Superior Court and was sentenced to between 6 and 10 years in prison.
According to court proceedings, Mr. Barros-Gomes, a customer service representative at the Route 131 department store, raped the boy in a dressing room while his mother had stepped away to make a telephone call.
In its lawsuit, the family of the victim, who has Asperger’s syndrome, alleged that Mr. Barros-Gomes had noticed his cognitive challenges and entered the dressing room with knowledge that cameras in the area were fake and supervision scant.
“The store was also understaffed and, as a direct and proximate result of this negligence, not only was the grooming and rape of (the boy) caused, but said grooming and rape was allowed to go on for an extended period of time undetected,” its lawyer wrote.
The suit further alleged that “agents, servants or employees” of the store “had actual knowledge” that Mr. Barros-Gomes was in the dressing room alone with the boy.
In court filings, J.C. Penney pushed back against the claims, with its attorney, David A. White of North Andover, writing that it had “no duty to provide security to its patrons, including (the boy).”
Mr. White also wrote that the store followed industry standards in its hiring and training of Mr. Barros-Gomes, and that it had no way to know his proclivity for criminal conduct.
“J.C. Penney admits only that there were theft deterrent devices located in the store for the purpose of deterring potential theft of merchandise,” it wrote regarding the camera allegation. It also denied that any employees had any knowledge that Mr. Barros-Gomes was in the dressing room.
Had the case moved forward, more than 15 depositions were anticipated, including testimony from multiple store employees, including one the family accused of seeing that Mr. Barros-Gomes was in the dressing room with a customer and failing to act.
The two sides are currently working to finalize payment of the settlement. According to a Dec. 19 filing by J.C. Penney, the settlement contains “an express denial of liability by (the company).”
The company – noting the victim’s mental struggles - has asked that a guardian be appointed to determine whether the now-21-year-old is able to comprehend the settlement agreement or, in the alternative, decide whether it is fair.
The family has asked the matter be settled quickly, noting that the company, not its insurers, is paying the settlement.
“Given J.C. Penney’s well-publicized financial problems, including possible bankruptcy, it is very possible that the settlement funds will be unavailable by the time that the settlement is approved and a release executed,” its attorney, Thomas B. Farrey III, wrote in a Dec. 15 motion requesting the funds be set aside with the court or a third party.
Mr. Farrey and the J.C. Penney attorney, Mr. White, declined comment Friday. According to documents filed by Mr. Farrey, the victim in the case is working and has a driver’s license, but is expected to harbor permanent emotional scars from the abuse that will require long-term treatment.
Mr. Farrey wrote that the victim lives on his own, but because of his lack of experience managing money, his family is setting up a trust account for the settlement.